Kagan's Atlantic Crossing: Adversarial Legalism, Eurolegalism, and Cooperative Legalism
Francesca Bignami and R. Daniel Kelemen, Kagan's Atlantic Crossing: Adversarial Legalism, Eurolegalism, and Cooperative Legalism in European Regulatory Style, in Varieties of Legal Order: The Politics of Adversarial and Bureaucratic Legalism (Jeb Barnes & Thomas F. Burke eds., Routledge, 2017)
28 Pages Posted: 29 Sep 2017 Last revised: 23 Dec 2018
Date Written: 2017
In this contribution to Varieties of Legal Order, a book inspired by Robert Kagan’s scholarship, we review the debate on the spread of American “adversarial legalism” to Europe. In the 1990s, Kagan developed the concept of adversarial legalism to capture the distinctive litigiousness of the American regulatory system, and asked whether it might take hold in Europe. In our research that followed, we put forward different answers. R. Daniel Kelemen concluded that a legal style akin to adversarial legalism—one which he eventually termed Eurolegalism—was in fact spreading across the European Union. Drawing on her case study of the data privacy field, Francesca Bignami argued that EU regulation was not evolving into adversarial legalism, but rather had come to rely more on agency enforcement and private-sector cooperation, a style she called “cooperative legalism.” The chapter links the discussion of our own work with other important contributions to the debate on European regulation. It concludes by underscoring the enduring importance of understanding the European regulatory style and by highlighting the issues on which future research will be crucial.
Keywords: comparative law, courts, administrative law
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